On August 15 the Department of Health and Human Services issued an amended version of its “temporary enforcement safe harbor” document offering–temporary!–protection from having to comply with the contraceptives mandate to some additional religious employers.

Recall: the mandate is a requirement that health insurance offered to employees must cover without copays a wide range of women’s preventive services, including all FDA-approved contraceptive services, which include emergency contraceptives that some believe are abortifacients (see IRFA’s memo for these and other details). The administration has exempted “religious employers” from the mandate–but defined that category so narrowly that churches, but not faith-based charities, schools, colleges, or hospitals are exempt. In response to the great outcry against the narrowness of the exemption, the administration promised that, within a year, it would devise an “accommodation” for non-exempt religious employers, and it also offered a “temporary enforcement safe harbor” for a year to nonprofit organizations with a religious objection to contraceptives to protect them while the accommodation is being created.

To be eligible, though, religious organizations were required, as of Feb. 10, 2012, the day the original safe harbor document was released, not to be covering any contraceptives in the health insurance they offered to their employees. The scope requirement was a problem for Protestant organizations which typically do not object to birth control but are against drugs and procedures that result in abortions; the timing requirement was a problem for any religious organization that discovered belatedly that its health insurance covered procedures to which it objected or that was unable to get all contraceptives removed from its plan before the Feb. 10 deadline.

The amended policy now extends the temporary enforcement safe harbor to employers with religious objections to some, but not all, contraceptive services, and also to employers who attempted to eliminate or limit their contraceptive coverage but had not succeeded in doing so by Feb. 10.

This is a very welcome change. But there is no reason for a big celebration. No actual “accommodation” has been made public. The administration remains committed to its pernicious two-class scheme in which only churches, not faith-based service organizations, receive full First Amendment protection of their conscience claims. The administration continues to assert that it has already sufficiently protected religious freedom, even without a specific “accommodation” proposal (see the story above on the Democratic party platform).

And there can be little doubt that the expanded safe harbor was not volunteered by the administration but rather was prepared in order to avoid an inconvenient defeat in court. Recall that a Colorado judge in July issued a preliminary injunction against enforcement of the mandate on a Catholic-owned business–the judge thought that the company has good chance of winning its argument that the contraceptives mandate violates the Religious Freedom Restoration Act and, as a business, not a nonprofit, the company could not avail itself of the enforcement safe harbor and thus needed immediate court protection.

Wheaton College, a Protestant college in Illinois, also had sued the federal government and noted that, because it objected only to abortifacients and had been unable to get them excluded from its plan by Feb. 10, it, too, was ineligible for the enforcement safe harbor and required court protection. But before this federal judge could rule on the merits of the argument, HHS announced its modified safe harbor, which now provides temporary protection to Wheaton College. The judge dismissed the lawsuit as premature, sparing the administration a second defeat.

Yet Wheaton has appealed the dismissal of its lawsuit. And there are some 27 lawsuits against the administration, including a new one by the Triune Health Group (another Catholic-owned business) and another new one from Biola University and Grace College and Seminary. A temporary enforcement safe harbor, no matter how much expanded, remains only a temporary shield. The underlying threats to religious freedom have not been eliminated.